its prejudicial effect does not substantially outweigh its probative value.”). Therefore, the Appellate
Court’s rejection of Latine’s ineffective assistance of counsel, prosecutorial misconduct and trial
error arguments did not result in a decision that was contrary to or involved an unreasonable
application of clearly established federal law, or result in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented. Further, even if the
evidence of the .9 millimeter handgun was erroneously admitted, for the reasons detailed at infra
section ITI, this court finds that the admission would constitute harmless error. See Aleman v.
Sternes, 320 F.3d 687, 690 (7th Cir. 2003) (harmless error that did not play a causal role in prisoner's
custody does not justify collateral relief),
CONCLUSION
For all the reasons stated above, petitioner Khlong Latine’s petition for wril of habeas corpus

is denied. This case is dismissed in its entirety. All pending motions are moot.

cesT Fr. “ik
United States District Judge

DATE: April 1, 2003

13



presented to the state courts solely in state-law terms may be found to have been forfeited. See
Wilson v. Briley, 243 F.3d 325, 327-28 (7th Cir. 2001); Moleterno v. Nelson, 114 F.3d 629, 634 (7th
Cir. 1997).

Accordingly, procedural default can occur where: (1) the petitioner presents an issue within
a petition never before presented to the state cour! for review, see Rodriguez v. Peters, 63 F.3d 546,
555 (7th Cir. 1995); (2) the petitioner failed to properly and fairly raise the federal element of an
issue now presented on petition first to the state court for review, see Verdin v. O* Leary, 972 F.2d
1467, 1472 (7th Cir, 1992); or (3) the state court previously disposed of an issue now presented on
petition on an independent and adequate state law ground, such as a state procedural bar, see
Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546 (1991), A federal court may excuse a
procedural default if a petitioner can show either cause for the default and prejudice arising from
failure to review the claims, or thal failure to review the claims on procedural grounds would result
in a fundamental miscarriage of justice. See Mahafley, 294 F.3d at 914 -15.

Once these prerequisites have been met and a federal court reaches the merits of a petitioner's
claims, the court may grant a writ of habcas corpus on a claim decided on the merits by the state
courts only if the state courts! rejection of that claim cither (1) resulted in a decision that was contrary
to or involved an unreasonable application of clearly established Federal law as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C.
§ 2254(d). Further, 28 U.S.C. § 2254(e)(1) provides that determinations of [actual issues by state
courts are presumed correct, and may be rebutted only by clear and convincing evidence,

A state-court decision is contrary to Supreme Court precedent if the state court arrives at a



direct evidence to meet its burden of proof; a defendant’s conviction may be based solely on
circumstantial evidence. Scc People v. Locascio, 106 IIL.2d 529, 537, 478 N.E.2d 1358, 1361 (IIL.
1985). Here, Officer Rawson testified at trial that as he was chasing Latine along Highland Avenue,
he saw Latine turn back and look at him and then heard the sound of metal hitting the concrete

Shortly thereaftcr, Officer Christ found a .45 caliber automatic pistol lying on the pavement of
Highland Avenue. Officer Christ testified that there were marks on the gun, suggesting that it had
slid along the pavement.

As stated above, determinations of factual issues by state courts are presumed correct, and
may be rebutted only by clear and convincing evidence. Sce 28 U.S.C. § 2254(e)(1). Latine has not
presented any clear and convincing evidence to rebut the testimony by the officers at trial. The
Appellate Court concluded that based on the circumstantial evidence introduced at trial, it would be
reasonable for the trier of fact to conclude that Latine possessed the .45 caliber handgun and decided
to discard the weapon because the police were pursuing him. This court does not find the Appellate
court’ s reasoning and ruling resulted in a decision that was contrary to or involved an unreasonable
application of clearly established Federal law as determined by the Supreme Court of the United
States or resulted in a decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding. See 28 U.S.C. § 2254(d). Accordingly, this
court finds that Latine’s armed violence claim does not support his petition for habeas relief.

III, Other Crimes Evidence
Next, Latine contends that he was denied a fait trial by the admission of “other crimes

evidence.” (Habeas Petition at 6.) On the morning of January 31, 1998, after the arrest of Latine and

Gonzalez, Officer Hughes returned to the alley where Latine and Gonzalez were found with the



evidence introduccd at trial was sufficient to support Latine’s conviction for possession of a stolen
motor vehicle,' In order for a person to be convicted of possession of a stolen motor vehicle, the
State must prove beyond a reasonable doubt that defendant possessed the vehicle, that he was not
entitled to possession of the vehicle, and that he knew that the vehicle was stolen. See 625 ICS 5/4
- 103(a)(1); People v. Anderson, 188 Ill.2d 384, 389, 721 N.E.2d 1121, 1124 (Ill. 1999).

As the Illinois Appellate Court detailed in its opinion, there was evidence at trial that Elgin
police Officer David Copher (“Officer Copher”) was driving in Elgin on the morning of January 31,
1998 when he observed a white Ford ‘Taurus with its headlights on in an alley. The car description
and license plate number matched that of a stolen car reported on radio dispatch two hours earlier.
Officer Copher observed that there were two people in the car, one in the driver's seat and one in the
passcnger’s seat. When Officer Copher drove up to the car, he observed Latine exit the car from the
driver’s seat and begin to walk away. When two back-up officers Christopher Hughes (“Officer
Hughes”) and Leigh Rawson (“Officer Rawson”) arrived to assist, Latine began to run. Officers
Hughes and Rawson began to chase Latine, and at some point during the chase when Officer Rawson
was approximately fifty fect bchind Latine on Highland Avenue, Officer Rawson saw Latine tum
and look back at him and then heard a noise that sounded like a metal object hitting the concrete.
Officer Rawson continued to chase Latine and apprehended him. Officer Hughes’ testimony at trial
about the chase was substantially the same as Officer Rawson’s. Officer Robert Christ, another

officer who responded to a radio call from Officer Copher during the chase, retrieved a .45 caliber

' Latine was not sentenced for the offense of possession of a stolen vehicle because the
trial court merged this offense with the armed violence offense. However, inquiry into the
possession of a stolen motor vehicle evidence is relevant because Latine’s conviction for armed
violence was predicated upon his being armed during the commission of the felony of possession
of a stolen motor vehicle.



conclusion opposite to that reached by the Supreme Court on a question of law. See Williams v.
Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 519 (2000). Second, a statc-court decision is also
contrary to Supreme Court precedent if the slate court confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent and arrives at a different result. See id.

To demonstrate that a state court decision resulted in an “unreasonable application” of Supreme
Court precedent, a petitioner must show that despite identifying the correct rule of law, the state
court unreasonably applied it to the facts of his case. Id. at 410-12.
ANALYSIS

I. Unlawful Possession of a Stolen Motor Vehicle

Latine’s first assertion is that he was not proven guilty beyond a reasonable doubt of the
offense of unlawful possession of a stolen motor vehicle. In addressing this argument on direct
appeal, the Illinois Appellate Court applicd the Illinois case of People v. Collins, 106 Illl.2d 237, 261
(ll. 1985), in which the Illinois Supreme Court adopted the reasoning set forth in Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979), which sets forth the standard of review for a claim of
insufficient evidence. In reviewing the sufficiency of the evidence to support a criminal conviction,
the court must determine “whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt.” Jackson 443 U.S. at 318-19, 99 $.Ct. at 2788-89. This inquiry does
not require a court to “ask whether it believes that the evidence at the trial established guilt beyond
a reasonable doubt,” but rather “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” Id.

Applying the standard set forth in Jackson, the Illinois Appellate Court found that the



involved an unreasonable application of clearly established Federal law as determined by the
Supreme Court of the United States or resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding. See 28
U.S.C. § 2254(d), Accordingly, this court finds Latine is not entitled to habeas relief based on
alleged insufficiency of evidence to support the unlawful possession of a stolen motor vehicle
offense.
Il. Armed Violence

Next, Latine contends that the State failed to prove Latine guilly of the offense of armed
violence beyond a reasonable doubt. Again, the Illinois Appellate Court properly applied the
standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) in finding that there
was sufficient evidence for a rational tricr of fact to conclude that, beyond a reasonable doubt, Latine
possessed the .45 caliber handgun at the time he was unlawfully in possession of a stolen motor
vehicle. To prove a defendant guilty of armed violence, the State must prove that the defendant
committed a felony while armed with a dangerous weapon. See 720 ILCS 3/33A-2, Because the
Appellate Court found the State sufficiently proved Latine committed the felony of possession of a
stolen motor vehicle, the only issue remaining was whether the State proved Latine was armed with
a dangerous weapon at the time he committed the underlying felony. A person is considered armed
with a dangerous weapon when he carries on or about his person, or is otherwise armed with a
weapon, such as a handgun, See 720 1LCS 5/33A-1(a); People v. Strong, 316 Il]_App.3d 807, 815
(3d. Dist. 2000).

The Appellate Court acknowledged that although there was no direct evidence that Latine

possessed the handgun Officer Christ retrieved from Highland Avenue, the State need not introduce



‘
Minule Order Form (0697)

ia

United States District Court, Northern District of Illinois

N yf A d Judge Sitting Judge if Oth
ie Magara Judge James F. Holderman than Asslgned Judge
CASE NUMBER 02 € 8369 DATE 4/1/2003
CASE LATINE vs. JAIMET
TITLE

[In the following box (u) indicate the party filing the motion, e.g., plaintiff, defendant, 3ed party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

(y) Oo Filed motion of [ use listing in “Motion” box above.]

(2) 0 Bricf in support of motion due

3) QO Answer brief to motion due___- Reply to answer briefdue__

(4) oO Ruling/Hearing on ___set for at

(5) im Status hearing[held/continued to] [sct for/re-set for] on setfor_ saat

(6) oO Pretrial conference[held/continucd to] [set for/re-set for]on __—s set for___ at

(7) o Trial[set for/re-sct for}on__at

(8) oO [Bench/Jury trial] [Hearing] held/continucd to___at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OFRCP4(m) OlLocal Rule 41.1 OFRCP41(a\(1) O FRCP41(a)(2).

ao [Other docket entry] Pursuant to Memorandum Opinion and Order entered this day, the petition
for a writ of habeas corpus is denied. This action is dismissed in its entirety. Any other pending motions
are moot.

(11) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required,

Notices mailed by judge’s staff.

Notified counsel by telephione.

dle dgceted
Docketing to mail notices,
Mail AQ 450 form. LEP at pay sqcey foxtbting desuty initiala
Copy to judge/magistrate judge.
41/2003
! i Hed notice
-pourtroom Pb feuevuy date mated noi
JS deputy's: 7
initials oo
\ OE Sprlte/tine rédetved in

ventral Clerk’s Office trailing deputy initials



motor vehicle. The .9 millimeter handgun was found in close proximity to where Latine was found,
and Latine’s indictment did not specify the type of handgun Latine carried. The Appellate Court
found that this evidence was relevant to the issue in dispute at trial and its probative value did not
outweigh its prejudicial effect. The Appellate Court further noted that the evidence of the .9
millimeter handgun was not improper “other crimes” evidence because it was evidence relevant to
the crime for which Latine was on trial, and was not offered as evidence ofa separate crime to show
Latine’s propensity to commit crime.

At this stage, “it is not this court's duty to balance the probative value against the unfair
prejudice because the Due Process Clause does not permit federal courts to engage in a fincly tuned
review of the wisdom of state evidentiary rules.” Anderson v. Sternes, 243 F.3d 1049, 1055 (7th Cir.
2001). Rather, this court must consider whether the alleged unfair prejudice stemming from the
evidence of the .9 millimeter gun “firmly convinces us that bul for the errors, the outcome of the trial
probably would have been different,” thus denying the Latine his due process right to a
fundamentally fair trial. Id. This court does not find that but for the admission of evidence of the
.9 millimeter gun found in the alley, the outcome of the trial probably would have been different.
The record establishes that in securing the armed violence conviction against Latine, the State relied
heavily upon the evidence of the .45 caliber handgun and the circumstances surrounding its
discovery. In fact, Latine concedes that “[a]lthough both firearms were introduced into evidence,
the State contended, during closing arguments, only that they had proved their case against Latine
for possession of the 45 caliber handgun; the State did not offer argument on, or even mention, the
second gun—a 9mm-during closing arguments.” (Kesp.’s Answer to Pet. for Habeas Corpus, Ex. L.

at 3.) Given the State’s focus on the .45 caliber handgun allegedly to have been thrown on the

11



stolen vehicle and found a loaded .9 millimeter handgun on the ground near where the vehicle had
been. Attrial, this .9 millimeter gun Officer Hughes found in the alley was admitted into evidence.
Latine argues that the admission of the evidence of this .9 millimeter gun, which Latine labels “other
crimes evidence,” deprived him of his right to a fair trial.

Respondent Jaimet maintains first that Latine has procedurally defaulted on this claim
because he failed to present this claim to the Illinois Supreme Court, In his petition for leave to
appeal to the Illinois Supreme Court, Latine discussed the admission of the .9 millimeter gun in
connection with his argument that his indictment was insufficient’ and in connection with his claim
that there was insufficient evidence to convict him of armed violence, but does not clearly raise a
separate claim that the “other crimes evidence” denied him a fair trial. This court finds that despite
the lack of clarity in Latine’s petition for leave to appeal, Latine has sufficiently presented the “other
crimes” issue to the Illinois Supreme Court. Latine alleges in his petition for leave to appeal that the
evidence of the .9 millimeter gun should not have becn admitted into evidence because the State
failed to make a showing of connection between the gun and Latine, and that its admission into
evidence prejudiced defendant.

In considering Latine’s claim on the merits, this court finds that Latine has not established
that the admission of the .9 millimeter handgun into evidence at trial warrants habeas relief. The
Appellate Court noted in its order affirming Latine’s conviction that the evidence of the .9 millimeter
gun found in the alley was admissible because it was relevant to the issue of whether Latine was in

possession of a dangerous weapon at the time he committed the felony of possession of a stolen

*Latine has not raised the insufficiency-of-indictment argument in the instant habeas
petition.

10



automatic pistol lying on the pavement on Highland Avenue, with marks on it indicating it might
have slid along the pavement.

The Appellate Court concluded that based on the evidence, a rational trier of fact could have
found, beyond a reasonable doubt, that the vehicle was stolen, and in Latine’s possession. First, the
Appellate Court found sufficient evidence that the vehicle was stolen. ‘The vehicle reported stolen
by its co-owner matched the vehicle Officer Rawson discovered two hours later. ‘The vehicle’s co-
owner testified that he did not know Latine or Miguel Gonzalez (“Gonzalez”), the man who was with
Latine and sitting in the passcnger’s seat of the vehicle. At trial, Gonzalez testified that Latine was
driving the car prior to stopping in the alley where Officer Copher approached, Further, Officer
Copher observed Latine exiting from the driver’s side of the vehicle. The Appellate Court also
found that the evidence introduced at trial supported the inference that Latine knew the vehicle was
stolen, noting that Latine was driving a vehicle reported stolen just {wo hours earlier, was seen
exiting the driver’s side of the vehicle, continued walking away from the scene until Officer Copher
ordered him to stop, and ran from the scene when other officers arrived. Further, when interviewed
by officers following his arrest, Latine provided contradictory testimony, alleging that he was never
in the vehicle and just happened to be walking in the alley near the car at the time the police arrived.

Under 28 U.S.C. § 2254(e)(1), determinations of factual issues by state courts are presumed
correct, and may be rebutted only by clear and convincing evidence. Latine has not presented any
clear and convincing evidence to rebut the evidence introduced at trial. Based on a review of the
record, this court does not find that the Appellate Court’s ruling that, viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt, resulted in a decision that was contrary to or



___——~-—

failed to object to the admission of other crimes; (5) prosecutorial misconduct denied him the right
to a fair trial; and (6) the trial court committed reversible error when it allowed other crimes to be
admitted into evidence.
STANDARD OF REVIEW
A federal court may grant a writ of habeas corpus on behalf of a prisoner held in custody
pursuant to a state court judgment only if the petitioner is held in custody in violation of the
Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). It follows that errors of

state law are irrelevant unless they resulted in the deprivation of a constitutional or federal right. See

Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475 (1991) (“it is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions"); Perry v, McCaughtry,
308 F.3d 682, 688 (7th Cir. 2002). And it must be kept in mind that "the Constitution entitles a
criminal defendant to a fair trial, not a perfect one." Delaware vy. Van Arsdall, 475 U.S. 673, 681
(1986); Todd v. Schomig, 283 F.3d 842, 850 (7th Cir. 2002).

Prior to the court’s consideration of a petitioner’s claims on the merits, a habeas petitioner
must meet several distinct procedural requivements. A habeas petitioner must first have given the
state's highest court an opportunity to address each claim. Sce O'Sullivan y. Boerckel, 526 U.S. 838,
841-42, 119 S.Ct. 1728 (1999); Mahaffey y. Schomig, 294 F.3d 907, 914-15 (7th Cir. 2002). To
satisfy this requirement, a petitioner must present to the state judiciary both the operative facts and
legal principles that contro) cach claim. See Mahaffey, 294 F.3d at 914-15. A petitioner must
comply with state rules to avoid procedurally defaulting his claims, sce id., and each claim must have
been "fairly presented,” in the manner prescribed by state law, apprising the state courts of the facts

and law supporting each claim. Sullivan, 526 U.S. at 848, 119 S.Ct. 1728, A constitutional claim



“  40.450(Rov. 5/85, Judgment in a Civil Cuse

United States District Court
Northern District of Illinois

Eastern Division

LATINE JUDGMENT IN A CIVIL CASE
v. Case Number: 02 C 8369
JAIMET

Oo Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.

a Decision by Court. This action came to trial or hearing before the Court. The issues
have been tried or heard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that the petition for a writ of habeas corpus is
denied. This action is dismissed in its entirety.

Michael W. Dobbins, Clerk of Court

Date: 4/1/2003 AL —

J. Smith, Derfyly Clerk as



to file a supplemental brief and represent himself pro se in the appeals process, and discharged the
State Appellate Defender as Latine’s altorney of record.

On May 18, 2001, Latine filed his supplemental brief on direct appeal raising the following
issues: (1) whether Latine was proven guilty of the offense of a stolen automobile and whether the
State failed to prove the automobile was actually stolen; (2) whether Latine was proven guilty of the
offense of armed violence; (3) whether Latine was denied a fair trial by the admission of other crimes
evidence; (4) whether trial counsel was ineffective for allowing the admission of other evidence; (5)
whether prosecutorial misconduct denied Latine the right to a fair trial; (6) whether the trial court
committed reversible error in allowing other crimes evidence. The Illinois Appellate Court affirmed
Latine’s conviction and sentence in an order issued on March 19, 2002.

Latine then filed a petition for leave to appeal to the Illinois Supreme Court and raised three
issues: (1) whether the indictment was sufficient; (2) whether Latine was proven guilty of the offense
of armed violence offense; (3) whether Latine was proven guilty of the offense of unlawful
possession of a stolen automobile. In addition, Latine states that he “[stood] by the arguments
presented on appeal concerning the claims of ineffective assistance of counsel, prosecutorial
misconduct and error of trial court.” (Resp.’s Answer to Pet. for Habeas Corpus, Ex. I. at 13.) On
October 2, 2002, the Tllinois Supreme Court denied Latine’s petition for leave to appeal. Tatine did
not seek any post conviction relief in the Circuit Court of Kane County.

On December 24, 2002, Latine filed the instant petition for writ of habeas corpus, arguing
that: (1) he was not proven guilty of the offense of unlawful possession of a stolen motor vehicle;

(2) he was not proven guilty of the offense of armed violence; (3) he was denied a fair trial by the

admission of other crimes evidence; (4) he was denicd the effective assistance of counscl when he



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KEHLONG LATINE )
)
Petitioner, )

) 02 C 8369

v. ) PN

)
DANNY JAIMET, Warden of Jacksonville )
Cortectional Center )
)
Respondent. )
)

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge:

On December 24, 2002, petitioner Khlong Latine (“Latine”) filed a petition for writ of habeas
Corpus pursuant to 28 U.S.C. § 2254. For the following reasons, Latine’s petition for habeas relief
is denied.

BACKGROUND

Latine is currently incarcerated at the Jacksonville Correctional Center. On September 8,
1999, afer a bench trial in the Circuit Court of Kane County, Latine was found guilty of armed
violence and sentenced to a term of fifteen years imprisonment, Although Latine was initially
charged with a separate count of possession of a stolen vehicle, the trial court merged this count into
the armed violence count. On direct appeal to the Appellate Court of Illinois, Second District,
Latinc’s appointed counsel raised only the issue of whether the State proved the offense of unlawful
possession of a stolen motor vehicle beyond a reasonable doubt. Subsequently, pursuant to Latine’s

motion to file a supplemental brief, the Illinois Appellate Court on June 21, 2001, allowed Latine


ground by Latine, rather than the .9 millimeter gun found nearby the vehicle in the alley, this court
concludes that even if any prejudice resulted from the admission of evidence of the .9 millimeter
gun, it does not call the propriety of the trial judge’s verdict into question.
IV. Effectiveness of Counsel, Prosecutorial Misconduct, Reversible Error

Latine further contesis the admission of the .9 millimeter gun by citing to three other
constitutional violations it allegedly caused him to suffer: (1) he was denied effective assistance of
counsel when his attorney failed to object to the admission of the gun; (2) the statc’s attorney
committed prosecutorial misconduct when he introduced the gun; and (3) the trial court committed
reversible error when it allowed evidence of the gun to be admitted. (Ilabeas at 6.) Latine’s claims
are bascd on the premise that the evidence of the .9 millimeter handgun constituted inadmissible
“other crimes” evidence. Respondent contends that these issues are procedurally defaulted because
Latine failed to present thesc claims to the Illinois Supreme Court. However, because Latine stated,
at the end of his Leave to Appeal to the Illinois Supreme Court, “Defendant also stands by the
arguments presented on appeal concerning the claims of ineffective assistance of counsel,
prosecutorial misconduct and error of trial court,” (Resp.’s Answer to Pet. for Habeas Corpus, Lix.
T. at 13.), this court will consider Latine’s arguments on the merits.

In addressing these arguments on direct appeal, the Appellate Court held that regardless of
the manner in which Latine frames the issuc, there was no error in the admission of the .9 millimeter
handgun at trial. This court agrees. As discussed above, the evidence of the handgun was admissible
because it was relevant to the issue of whether Latinc was in possession of a dangerous weapon at
the time he committed the felony of possession of a stolen motor vehicle. See People v. Patterson,

192 IlL.2d 93, 114-115 (2000) (“Evidence is admissible if it is relevant to an issue in dispute and if

12